O 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 JANE D.M. DOE, a minor, by and ) Case No. 20-cv-3218 DDP (JPRx) 10 through her Guardian ad Litem, Ivette ) 11 Rodriguez, ) ORDER GRANTING 12 ) DEFENDANT’S MOTION TO Plaintiff, ) DISMISS FIRST AMENDED 13 ) COMPLAINT FOR DAMAGES 14 v. ) ) [Dkt. 31] 15 )

16 ) ) 17 COUNTY OF LOS ANGELES, and ) 18 DOES 1 through 10, inclusive, ) ) 19 Defendants. ) 20 ) ) 21

22 Presently before the court is County of Los Angeles’ Motion to Dismiss First

23 Amended Complaint for Damages. (Dkt. 31, Mot.) Having considered the submissions

24 of the parties and heard oral argument, the co urt grants the motion and adopts the

25 following Order.

26 I. B A C K GROUND

27 Plaintiff JANE D.M. DOE (“Plaintiff”) “was born on April 11, 2008 and is a minor (“FAC”) ¶ 5.) “Plaintiff is the natural born daughter of [Alfredo Montalvo (“Decedent”)] 1 . . . [as] confirmed by DNA testing.” (Id.) Defendant County of Los Angeles (“County”) 2 “is, and was, a duly organized public entity existing under the laws of the State of 3 California.” (Id. ¶ 7.) Defendants DOES 1-10, “were duly appointed County of Los 4 Angeles Sheriff’s Deputies and were employees or agents of County . . . .” (Id. ¶ 8.) 5 Plaintiff alleges that “[o]n or about April 26, 2009, at or near the intersection of 6 Santa Fe and Norton Avenues in the city of Lynwood, California, Defendants DOES 1-10 7 shot [Decedent] sixty-one (61) times and [Decedent] was unarmed at the time he was shot 8 and killed by DOES 1-10.” (Id. ¶ 39.) Plaintiff also alleges that “[o]n November 6, 2009, 9 10 three of Decedent’s family members filed a complaint against the County in [ ] Superior 11 Court for the County of Los Angeles, Case No. TC023708, [(“Montalvo Action”)] for the 12 alleged violation of civil rights, negligence, negligent hiring, training and supervision, 13 battery, intentional infliction of emotional distress and wrongful death.” (Id. ¶ 15.) The 14 Montalvo Action did not include Plaintiff. (Id.) In the Montalvo Action, “[o]n November 15 20, 2012, a twelve-person jury returned a verdict awarding . . . $8.5 million in damages 16 after finding that the County was negligent in the shooting of Decedent . . . .” (Id. ¶ 16.) 17 Plaintiff asserts that her claims “remain without adjudication and, in the furtherance of 18 the interests of justice the instant Complaint seeks a judicial remedy for [Plaintiff’s] 19 claims . . . .” arising from the County’s wrongful shooting of Decedent. (Id.) 20 On April 7, 2020, Plaintiff commenced this action against Defendant asserting 21 federal and state law claims on behalf of herself and on behalf of Decedent. (Dkt. 1, 22 Compl.) On October 20, 2020, the court granted the County’s Motion to Dismiss and 23 granted Plaintiff leave to amend to sufficiently allege the wrongful death claims and to 24 sufficiently allege standing. (Dkt. 28, Order Granting Defendant’s Motion to Dismiss 25 Complaint.) The County presently moves to dismiss the First Amended Complaint 26 under Rule 12(b)(6). (Mot.) 27 ///

II. LEGAL STANDARD

1 A complaint will survive a motion to dismiss when it contains “sufficient factual 2 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 3 Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 4 When considering a Rule 12(b)(6) motion, a court must “accept as true all allegations of 5 material fact and must construe those facts in the light most favorable to the plaintiff.” 6 Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Although a complaint need not include 7 “detailed factual allegations,” it must offer “more than an unadorned, the-defendant- 8 unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. Conclusory allegations or 9 10 allegations that are no more than a statement of a legal conclusion “are not entitled to the 11 assumption of truth.” Id. at 679. In other words, a pleading that merely offers “labels 12 and conclusions,” a “formulaic recitation of the elements,” or “naked assertions” will not 13 be sufficient to state a claim upon which relief can be granted. Id. at 678 (citations and 14 internal quotation marks omitted). 15 III. DISCUSSION 16 A. Section 1983 Claims 17 The County moves to dismiss Plaintiff’s Section 1983 claims arguing that the 18 claims are “premised on alleged excessive force [that] cannot be brought as wrongful 19 death claims.” (Mot. at 6:17-19.) According to the County, the claims are survival claims 20 that the court has previously dismissed with prejudice. Plaintiff does not dispute that 21 she cannot pursue survival claims in this action. (Dkt. 32, Opp.) Plaintiff also does not 22 dispute that she cannot pursue excessive force claims as wrongful death claims. (Id. at 23 12-13.) Plaintiff instead asserts that the Section 1983 claims are “substantive due process 24 claims based on her loss of her father’s companionship.” (Id.) Defendant does not 25 appear to dispute that such a claim is proper. (Dkt. 33, Reply (“To the extent such a claim 26 could proceed, plaintiff’s Opposition makes clear that her claim is only for substantive 27 due process loss of association under the Fourteenth Amendment.”); see also FAC ¶ 5 “Plaintiff does not assert survival claims.”) The court agrees that Plaintiff’s claims may 1 proceed as substantive due process loss of association claims. 2 B. Article III Standing 3 The County next argues that Plaintiff has insufficiently pled standing under the 4 standards set forth by the Supreme Court in Lehr v. Robertson, 463 U.S. 248 (1983) and 5 more recently, the Ninth Circuit in Wheeler v. City of Santa Clara, 894 F.3d 1046 (9th Cir. 6 2018). According to the County, the First Amended Complaint does not sufficiently 7 establish that Decedent “actually spent time with plaintiff,” that Decedent “participated 8 in any parental activities,” or generally “maintained consistent contact” with Plaintiff. 9 10 (Mot. at 10-12.) 11 “A decedent’s parents and children generally have the right to assert substantive 12 due process claims under the Fourteenth Amendment.” Wheeler, 894 F.3d at 1057. 13 “[C]hildren’s Fourteenth Amendment rights to companionship with their parents have 14 been interpreted as reciprocal to their parents’ rights.” Id. at 1058. The Supreme Court 15 has made clear that “the mere existence of a biological link does not merit [ ] 16 constitutional protection.” Lehr, 463 U.S. at 261. Instead, “[j]udicially enforceable 17 Fourteenth Amendment interests require enduring relationships reflecting an 18 assumption of parental responsibility and ‘stem[ ] from the emotional attachments that 19 derive from the intimacy of daily association, and from the role it plays in promoting a 20 way of life through the instruction of children.’” Wheeler, 894 F.3d at 1058 (quoting Lehr, 21 463 U.S. at 256-61)). Therefore, “even biological parents must maintain consistent 22 involvement in a child’s life and participation in child-rearing activities for their 23 relationship to be entitled to the Fourteenth Amendment protections . . . .” Id. 24 As currently pled, the allegations fall short of establishing that Decedent 25 maintained consistent involvement in Plaintiff’s life and participated in child-rearing 26 before his death. At the time of Decedent’s death, Plaintiff was a year and two weeks 27 old. (FAC ¶ 26.) Plaintiff alleges that “Decedent wanted Plaintiff [ ] to be a huge part of [his] life,” and that “Decedent embraced Plaintiff with a lot of love.” (Id. ¶¶ 23-24.) 1 However, these new allegations are vague as to Decedent’s specific actions that 2 demonstrate that Decedent “embraced Plaintiff with a lot of love.” Further, Plaintiff’s 3 allegations are vague as to Decedent’s contact with Plaintiff. Plaintiff has not alleged any 4 contact between Decedent and Plaintiff, such as visits, phone calls, or any other form of 5 contact. The allegation that Decedent’s family attended Plaintiff’s first birthday, does not 6 state that Decedent himself attended. (Id. ¶ 25.) Specific allegations of Decedent’s 7 conduct toward Plaintiff during his life are necessary to plausibly allege consistent 8 involvement in Plaintiff’s life. These deficiencies can be cured by amendment, however. 9 10 The court dismisses the complaint with leave to amend. In any amendment, 11 Plaintiff must provide sufficient factual allegations that demonstrate Decedent’s 12 consistent involvement with Plaintiff and establishing that Decedent participated in 13 child-rearing. 14 C. California’s One-Action Rule 15 The County also argues that Plaintiff’s wrongful death claims are barred by 16 California’s One-Action Rule and that Plaintiff has not sufficiently alleged the County’s 17 knowledge of her existence at the time of the Montalvo settlement. (Mot. at 12-16.) The 18 California Supreme Court has articulated the One-Action Rule as follows: 19 In stating that an action for wrongful death is joint, it is meant that all heirs should join or be joined in the action and that a 20 single verdict should be rendered for all recoverable 21 damages; when it is said that the action is single, it is meant that only one action for wrongful death may be brought 22 whether, in fact, it is instituted by all or only one of the heirs, 23 or by the personal representative of the decedent as statutory trustee for the heirs; and when it is said that the action is 24 indivisible, it is meant that there cannot be a series of suits by 25 heirs against the tortfeasor for their individual damages.

26 27 Cross v. Pac. Gas & Elec. Co., 60 Cal. 2d 690, 694 (1964). The One-Action rule will bar 1 subsequent wrongful death claims by omitted heirs. See Smith v. Premier Reliance 2 Insurance Co., 41 Cal. App. 4th 691 (1995). However, a defendant may waive the right to 3 single action where the defendant had knowledge of the omitted heir and did not seek to 4 join that heir in the action or settlement. Id.; see also Gonzales v. S. California Edison Co., 77 5 Cal. App. 4th 485, 489 (1999) (where a “defendant settles an action that has been brought 6 by one or more of the heirs, with knowledge that there exist other heirs who are not 7 parties to the action, the defendant may not set up that settlement as a bar to an action by 8 the omitted heirs.”). 9 10 The court previously granted Plaintiff leave to amend to sufficiently plead waiver 11 of the One-Action Rule. (See Dkt. 28.) In the First Amended Complaint, Plaintiff alleges 12 that in a February 20, 2013 letter, County counsel in the Montalvo Action was informed 13 that Plaintiff was an heir of Decedent’s and that she had “legal representation and 14 intended to file a lawsuit.” (FAC ¶ 31.) Although the allegations do not clearly state 15 who drafted the alleged letter, the allegations plausibly demonstrate that the County’s 16 counsel had knowledge of Plaintiff’s existence prior to the Montalvo Settlement and did 17 not seek to join Plaintiff in the Montalvo Action or Settlement. Nothing more is required 18 at the pleading stage. The County argues alternatively that the County’s notice of 19 Plaintiff’s existence prior to the settlement, “expired due to [P]laintiff’s failure to make 20 any other attempt to join the Montalvo Action.” (Reply at 5:14-5.) The County has not 21 cited any authority, nor has the court found any authority, for the proposition that a 22 defendant’s notice of an omitted heir can “expire.” Thus, the court concludes that 23 Plaintiff has sufficiently pled the County’s waiver of the One-Action Rule. 24 /// 25 /// 26 /// 27 ///

IV. CONCLUSION

1 For the reasons set forth above, the court grants the County’s Motion to Dismiss 2 the First Amended Complaint. The court grants Plaintiff leave to amend to sufficiently 3 plead Article III standing. Any amendment must be filed within 20 days from the date of 4 this order. 5 6 IT IS SO ORDERED. 7 Dated: December 30, 2020 8 9 10 ___________________________________ 11 DEAN D. PREGERSON 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27